Keelan Swint v. City of Carrolton, Georgia

USCA11 Case: 20-11965 Date Filed: 06/02/2021 Page: 1 of 17

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 20-11965
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D.C. Docket No. 3:19-cv-00012-TCB

KEELAN SWINT,

Plaintiff-Appellant,

versus

CITY OF CARROLLTON, GEORGIA,
TIMOTHY GRIZZARD,
FAITH PULLEN,
PETER MAIERHOFER,
JULIE IVEY,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_______________________

(June 2, 2021)
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Before WILLIAM PRYOR, Chief Judge, LUCK, Circuit Judge, and MARKS,*
District Judge.

PER CURIAM:

This appeal involves a complaint of retaliation brought by a former public

employee against a city and its officials. When her supervisors informed Keelan

Swint that her position with the city government was being eliminated because of

low participation in the programs she oversaw, they offered to reassign her but

with several conditions, including that she stop interfering in the personnel matters

of her former department. When her supervisors explained these conditions to her,

she started hyperventilating and suffered a panic attack. She brought several claims

under federal and state law against the city and the officials who supervised her,

including infringement of her associational rights, retaliation, and intentional

infliction of emotional distress. The district court granted summary judgment in

favor of the defendants. We conclude that the defendants are entitled to summary

judgment on the federal claims based on qualified immunity for the officials and

the absence of municipal liability for the city. We also conclude that Swint did not

plead a free-speech claim. And we conclude that Swint’s state-law claims of

retaliation and intentional infliction of emotional distress fail. We affirm.

*
Honorable Emily Coody Marks, Chief United States District Judge for the Middle
District of Alabama, sitting by designation.

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I. BACKGROUND

Keelan Swint began working for the City of Carrollton, Georgia, in 2002 as

a custodian. In 2016, she was promoted to facility supervisor of the Carrollton

Cultural Arts Center. And in 2017, she was transferred to the parks and recreation

department to work as an athletic coordinator. In that position, she reported to Julie

Ivey.

In January 2018, Swint spoke with a woman who had just quit her job at the

Cultural Arts Center. During the conversation, the woman said she believed that

another employee at the Center had raped a volunteer who was a minor. Swint

reported the allegation to the director of the parks and recreation department, Peter

Maierhofer, who passed the information on to the city’s director of human

resources, Faith Pullen. Pullen and the city manager, Timothy Grizzard, met with

Swint. They asked her if she had spoken with anyone other than Maierhofer about

the allegation, and she answered that she had informed two other city employees.

They ordered her not to speak about it with anyone else.

Grizzard and Pullen reported the allegation to the police department. A

detective interviewed the alleged victim, who denied having been raped. The

detective closed the investigation as “unfounded due to no crime occurring” and

notified Grizzard and Pullen of his findings.

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In March 2018, Maierhofer informed Swint that the city planned to eliminate

her position in the parks and recreation department because of low participation in

the programs she oversaw. He told her she could continue working for the city by

accepting reassignment to a maintenance position that had just become vacant, but

she would have to take a pay cut and the city would have to lay off her son, who

was also an employee. Swint reluctantly accepted the offer.

Grizzard, Pullen, Maierhofer, and Ivey later amended the terms of Swint’s

continued employment. They agreed that she could keep her former salary and

continue reporting to Ivey instead of to a new supervisor. But she would have to

accept several new conditions of employment, which they explained in a letter.

The first condition stated, “Do not involve yourself in anything associated with the

Cultural Arts Center,” especially “matters concerning pending litigation, past or

current employees, volunteers, or anyone associated with the Cultural Arts

Center,” “unless you are specifically directed to do so by your chain of command.”

Other conditions prohibited her from discussing her salary, the job performance of

other employees, and other sensitive matters with anyone other than her

supervisors, the human resources department, or law enforcement. She was also

prohibited from “mak[ing] threatening or disrespectful remarks or threats of legal

action about other employees, [her] chain of command, or elected officials”

because such comments were “a serious form of insubordination.” The last

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condition directed Swint to “sign this letter acknowledging that you have received

and read the letter and its conditions.” The letter warned that failure to adhere to

the conditions could result in disciplinary action, including reduction in pay or

termination.

Pullen, Maierhofer, and Ivey met with Swint on March 15, 2018. Maierhofer

tried to read the letter to Swint, but she periodically interrupted him to say that the

allegations were false and that she was being “railroaded.” As the meeting

progressed, she became more upset and started hyperventilating. Her husband

picked her up from work and took her to the emergency room. According to

Pullen, Swint resigned from her job during the meeting. Swint contends that she

did not resign and was instead fired for refusing to sign the letter.

Swint sued the city and the four officials involved in her alleged

termination—Grizzard, Pullen, Maierhofer, and Ivey—and pleaded four counts in

her complaint. First, she alleged that the defendants violated her right to freedom

of association. U.S. Const. amends. I, XIV; 42 U.S.C. § 1983. Second, she alleged

that they violated her constitutional rights by retaliating against her for refusing to

sign the letter. U.S. Const. amends. I, XIV; 42 U.S.C. § 1983. Third, she alleged

that the city violated the Georgia Whistleblower Act by retaliating against her for

disclosing the rape allegation. Ga. Code Ann. § 45-1-4. Finally, she brought a

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claim against the officials of intentional infliction of emotional distress based on

the panic attack that she suffered during the meeting.

The district court granted summary judgment to the defendants. It ruled that

the city and the officials were entitled to summary judgment on the federal claims

because they had not limited any of Swint’s protected associational activities and

because the speech for which they had allegedly retaliated against her was not a

matter of public concern. It also rejected Swint’s late attempt to raise a free-speech

claim because she had made only passing references to freedom of speech in her

complaint. Next, it ruled that, under the Georgia Whistleblower Act, Swint

established a prima facie case of retaliation but that she failed to introduce

evidence that the proffered reasons for reassignment and dismissal were pretextual.

Finally, it ruled that Swint’s claim for intentional infliction of emotional distress

failed because reading a letter containing employment conditions is not outrageous

and extreme conduct and because no jury could find that the defendants intended to

harm Swint.

II. STANDARD OF REVIEW

We review a summary judgment de novo. Fitzpatrick v. City of Atlanta, 2

F.3d 1112, 1117 (11th Cir. 1993). “[We] may affirm if there exists any adequate

ground for doing so, regardless of whether it is the one on which the district court

relied.” Id.

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III. DISCUSSION

We divide our discussion in four parts. We begin with the federal claims and

conclude that the city and officials are entitled to summary judgment based on

qualified immunity and the absence of municipal liability. Next, we conclude that

Swint did not plead a free-speech claim. We then turn to the retaliation claim under

the Georgia Whistleblower Act and Swint’s failure to establish that the proffered

reasons for her reassignment and termination were pretextual. Finally, we address

the claim of intentional infliction of emotional distress and conclude that the

officials did not intentionally or recklessly engage in extreme and outrageous

conduct.

A. The City and Officials Are Entitled to Summary Judgment on the Federal
Claims.
The city and its officials present separate arguments about Swint’s federal

claims. The city argues that it is entitled to summary judgment on the federal

claims because Swint did not identify an official policy or an unwritten custom or

practice that caused the alleged constitutional violations. And the officials argue

that they are entitled to summary judgment based on qualified immunity. We

address each argument in turn.

Municipalities may not be held liable under section 1983 on a theory of

respondeat superior. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).

Instead, municipal liability attaches “only when municipal ‘official policy’ causes

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a constitutional violation.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir.

1998) (citing Monell, 436 U.S. at 694–95). A plaintiff must identify either “an

officially promulgated [municipal] policy” or “an unofficial custom or practice of

the [municipality] shown through the repeated acts of a final policymaker for the

[municipality].” Grech v. Clayton County, 335 F.3d 1326, 1329 (11th Cir. 2003)

(en banc).

The city is not liable for the federal claims. Swint did not identify an

officially promulgated city policy that deprived city employees of their

associational rights or that punished them for engaging in protected activity. Nor

did she offer any examples of city officials repeatedly depriving employees of their

First Amendment rights or repeatedly retaliating against employees for exercising

those rights. She contends that the city is liable under a narrow exception to the

general rule wherein “municipal liability may be imposed for a single decision by

municipal policymakers under appropriate circumstances.” Pembaur v. City of

Cincinnati, 475 U.S. 469, 480 (1986). She argues that Grizzard was a final

policymaker because, as the city manager, he supervised all city employees. But

we have clarified that “a municipal official does not have final policymaking

authority over a particular subject matter when that official’s decisions are subject

to meaningful administrative review.” Morro v. City of Birmingham, 117 F.3d 508,

514 (11th Cir. 1997). Because Swint did not develop the record with evidence that

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employment decisions by the city manager of Carrollton are insulated from

meaningful administrative review, she has failed to establish that liability against

the city may be premised on a single act by Grizzard. Cf. Manor Healthcare Corp.

v. Lomelo, 929 F.2d 633, 636–37, 640 (11th Cir. 1991) (affirming the decision of

the district court that the plaintiff “failed to show [as] an essential element of its

case” that the defendant had final policymaking authority).

As for the officials, qualified immunity protects them “from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Priester v.

City of Riviera Beach, 208 F.3d 919, 925 (11th Cir. 2000) (internal quotation

marks omitted). For a right to be “clearly established,” a plaintiff must identify

either “case law with indistinguishable facts,” “a broad statement of principle

within the Constitution, statute, or case law,” or “conduct so egregious that a

constitutional right was clearly violated, even in the total absence of case law.”

Crocker v. Beatty, 995 F.3d 1232, 1240 (11th Cir. 2021) (internal quotation marks

omitted). When a plaintiff relies on the second and third categories, the “general

rule” she is invoking “must apply with obvious clarity to the circumstances.” Id.

(alterations adopted) (internal quotation marks omitted). Because “the Supreme

Court has warned us not to ‘define clearly established law at a high level of

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generality,’” these categories are rarely satisfied. Id. (quoting Plumhoff v. Rickard,

572 U.S. 765, 779 (2014)).

The officials are entitled to qualified immunity. Swint cites no case law with

similar facts to show that the conditions in her employment letter or the

requirement that she sign the letter violated her constitutional rights. And her

arguments about general First Amendment principles are too abstract to make it

obvious that the officials’ conduct violated her rights.

B. Swint Did Not Plead a Free-Speech Claim.
A claim for relief requires “a short and plain statement . . . showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). One of the purposes of this

rule is “to require the pleader to present his claims discretely and succinctly, so that

his adversary can discern what he is claiming and frame a responsive pleading.”

Barmapov v. Amuial, 986 F.3d 1321, 1324 (11th Cir. 2021) (alteration adopted)

(internal quotation marks omitted). The rule was “also written for the benefit of the

court, which must be able to determine which facts support which claims, whether

the plaintiff has stated any claims upon which relief can be granted, and whether

evidence introduced at trial is relevant.” Id. (internal quotation marks omitted).

Although “the Supreme Court has mandated a liberal pleading standard for civil

complaints under Federal Rule of Civil Procedure 8(a),” that standard is

“inapplicable after discovery has commenced.” Gilmour v. Gates, McDonald &

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Co., 382 F.3d 1312, 1314–15 (11th Cir. 2004). Rule 8(a) “does not afford plaintiffs

with an opportunity to raise new claims at the summary judgment stage.” Id. at

1314. A plaintiff who wants to allege a new claim must obtain the consent of the

opposing party or move the district court for leave to amend her complaint; she

cannot unilaterally amend her complaint in a brief opposing summary judgment.

Fed. R. Civ. P. 15(a); Gilmour, 382 F.3d at 1315.

The district court concluded that Swint did not assert a discrete free-speech

claim because she did not list one as a separate count and made only passing

references to the freedom of speech in her complaint. Swint argues on appeal that

she did plead a violation of her right to freedom of speech and that the district

court failed to analyze the sufficiency of her claim under the liberal pleading

standard of Federal Rule of Civil Procedure 8(a)(2). She asserts that the defendants

had adequate notice of her free-speech claim.

We agree with the district court: Swint did not plead a separate claim

involving her freedom of speech. She listed four counts in her complaint: violation

of her “[f]reedom of [a]ssociation” under the First and Fourteenth Amendments;

retaliation under the First and Fourteenth Amendments; retaliation under the

Georgia Whistleblower Act; and intentional infliction of emotional distress under

state common law. Her passing references to the freedom of speech in the first two

counts did not put her adversaries on notice that she was alleging a violation of her

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freedom of speech. See Barmapov, 986 F.3d at 1324. Moreover, when the district

court ruled at the summary-judgment stage, it was not required to apply a liberal

pleading standard. Gilmour, 382 F.3d at 1315. The district court did not err.

C. The City Is Entitled to Summary Judgment on the Retaliation Claim
Under the Georgia Whistleblower Act.

The Georgia Whistleblower Act prohibits retaliation by a public employer

against a public employee “for disclosing a violation of or noncompliance with a

law, rule, or regulation to either a supervisor or a government agency, unless the

disclosure was made with knowledge that the disclosure was false or with reckless

disregard for its truth or falsity.” Ga. Code Ann. § 45-1-4(d)(2). Georgia applies

the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973), to claims brought under the Act. Forrester v. Ga. Dep’t of Hum.

Servs., 708 S.E.2d 660, 665–66 (Ga. Ct. App. 2011).

Under the McDonnell Douglas framework, the plaintiff must first establish a

prima facie case of retaliation. Id. at 666. If a prima facie case is established, the

burden shifts to the employer to “articulate a legitimate, non-retaliatory reason for

the adverse employment action taken.” Id. If the employer offers a legitimate, non-

retaliatory reason, the burden shifts back to the plaintiff to establish that the

proffered reason for its action is pretextual. Id.

“Pretext is established by a direct showing that [an illicit] reason more likely

motivated the employer or by an indirect showing that the employer’s explanation

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is not credible.” Blockum v. Fieldale Farms Corp., 573 S.E.2d 36, 40 (Ga. 2002)

(internal quotation marks omitted). A proffered reason is not pretextual unless a

plaintiff proves both that the proffered reason was false and that retaliation was the

real reason. See Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1163

(11th Cir. 2006). A plaintiff must rebut each of the employer’s proffered reasons.

Crawford v. City of Fairburn, 482 F.3d 1305, 1309 (11th Cir. 2007).

The district court applied the McDonnell Douglas framework and concluded

that Swint’s retaliation claim failed. It first determined that Swint had established a

prima facie case of retaliation under the Act because the city is a public employer,

Swint’s reporting of the alleged rape was a disclosure of a violation of the law, her

reassignment and termination were adverse employment actions, and the disclosure

and adverse employment actions were close enough in time to each other to infer a

causal connection. See Ga. Code Ann. § 45-1-4(d)(2); Forrester, 708 S.E.2d at

666. It then accepted the city’s two legitimate, non-retaliatory reasons for the

adverse employment actions: Swint was reassigned because her original position

was eliminated due to low participation in the programs she oversaw, and she was

terminated because she refused to sign the letter or to make a statement refuting the

letter. Finally, the district court explained that Swint had made no attempt to show

that the articulated reasons were pretextual. Because Swint effectively abandoned

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her argument at the final step of the McDonnell Douglas framework, the city was

entitled to summary judgment.

Swint makes three arguments on appeal. First, she contends that she

produced direct evidence of retaliation in the form of a secret recording she made

of a telephone conversation with Grizzard. According to Swint, Grizzard said in

this recording that he was “not going up to bat” for her to keep her old position

because of the many times she had meddled in the business of the Cultural Arts

Center, including when she reported the alleged rape. Second, she contends that

she did argue below that the city’s proffered reasons were pretextual. Finally, she

argues that she presented a “convincing mosaic” of circumstantial evidence that

would allow a jury to infer that the city had illegally retaliated against her.

Each argument fails. First, Swint did not provide direct evidence of

retaliation because “only the most blatant remarks, whose intent could mean

nothing other than to [retaliate],” may constitute direct evidence. Jones v. Gulf

Coast Health Care of Del., LLC, 854 F.3d 1261, 1270 (11th Cir. 2017) (internal

quotation marks omitted). Grizzard’s purported statement that he was “not going

up to bat” for Swint is not so blatant that the only explanation for it is an intent to

retaliate. Indeed, Swint admits that Grizzard said during their telephone

conversation that he reassigned her because there was not enough work for her in

her old position. Second, Swint did not argue in the district court that the city’s

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proffered reasons were pretextual. The only times she mentioned pretext were

when she recited the McDonnell Douglas framework. Finally, she never argued to

the district court that a “convincing mosaic” of circumstantial evidence was

sufficient for a retaliation claim. We ordinarily will not address an argument that is

raised for the first time on appeal. Access Now, 385 F.3d at 1335. And even if

Swint had made this argument to the district court, Georgia law requires her to

satisfy the McDonnell Douglas framework. See Forrester, 708 S.E.2d at 665–66.

She cites no authority stating that a claim under the Georgia Whistleblower Act

can be evaluated under a “convincing mosaic” of circumstantial evidence or any

other alternative framework. The district court committed no error.

D. The Officials’ Conduct Was Neither “Intentional or Reckless” Nor
“Extreme and Outrageous.”
To succeed on a claim of intentional infliction of emotional distress under

Georgia law, a plaintiff must prove that the alleged wrongful conduct is both

“intentional or reckless” and “extreme and outrageous,” that there is “a causal

connection between the wrongful conduct and the emotional distress,” and that the

emotional distress is “severe.” Biven Software, Inc. v. Newman, 473 S.E.2d 527,

529 (Ga. Ct. App. 1996) (internal quotation marks omitted). The wrongful conduct

must be “so outrageous in character, and so extreme in degree, as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and utterly intolerable

in a civilized community.” Id. (internal quotation marks omitted). “Conduct is not

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extreme and outrageous simply because it is unkind or causes someone’s feelings

to be hurt.” Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1229 (11th Cir. 1993)

(citing Peoples v. Guthrie, 404 S.E.2d 442, 444 (Ga. Ct. App. 1991)). As a general

rule, an employer’s termination of an employee does not qualify as extreme and

outrageous conduct under Georgia law. Id.

Swint argues that the officials’ alleged conduct—demoting her after she

reported the rape allegation and terminating her employment after she refused to

sign a letter relinquishing her First Amendment rights—was both intentional and

outrageous. During her deposition, she testified that she was specifically upset by

Maierhofer reading the letter during the meeting, Ivey attending the meeting, and

Pullen and Grizzard accusing her of meddling in the affairs of the Cultural Arts

Center. She alleges that as a result of the emotional distress the officials caused

her, she now suffers from heart issues and anxiety, for which she takes medication.

We agree with the district court that the officials’ conduct was neither

“intentional or reckless” nor “extreme and outrageous.” Biven Software, 473

S.E.2d at 529. None of the actions that Swint identified, nor the requirement that

she sign to acknowledge that she received a letter and understood its conditions, is

conduct that “go[es] beyond all possible bounds of decency” or is “atrocious[] and

utterly intolerable in a civilized community.” Id. (internal quotation marks

omitted). The opinions that Swint cites in support of her claim are inapposite

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because they involve sexual harassment, unfair treatment compared to other

employees, failure to compensate for overtime, Trimble v. Circuit City Stores, Inc.,

469 S.E.2d 776, 777–78 (Ga. Ct. App. 1996), and demotion and threatened

termination for testifying against an employer, Yarbray v. S. Bell Tel. & Tel. Co.,

409 S.E.2d 835, 836, 838 (Ga. 1991). Reading a letter with employment conditions

is not comparable. Moreover, Swint acknowledged in her deposition that the

officials did not intend to cause her to hyperventilate or to have a panic attack. She

cannot prevail on her claim that they intentionally or recklessly caused her severe

emotional distress.

IV. CONCLUSION

We AFFIRM the summary judgment in favor of the city and its officials.

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